Why It Matters

A recent CRS report on the Supreme Court's landmark decision in Trump v. Barbara lays bare the constitutional obstacles Congress would need to clear to alter birthright citizenship policy, even after the justices narrowly split on how to interpret the Fourteenth Amendment.

The Court ruled six to three on June 30 that Executive Order 14160, which sought to deny citizenship to children born to parents who were unlawfully or temporarily present in the U.S., violates the Citizenship Clause. The order had declared that children whose mother was unlawfully present and whose father was not a U.S. citizen or lawful permanent resident would not be recognized as U.S. citizens, and similarly excluded children whose mother was lawfully but temporarily present under the same paternal condition.

The ruling eliminates the administration's unilateral path to redefining citizenship, but it leaves Congress theoretically free to pursue legislation, though with a steep price. The constitutional question itself divided the Court five to four, with Justice Kavanaugh's concurrence suggesting a narrow opening for Congress to legislatively alter the Immigration and Nationality Act's citizenship provisions without amending the Constitution. That theoretical avenue matters because a constitutional amendment would require two-thirds of both chambers and ratification by three-fourths of the states, a threshold that makes any such effort exceptionally difficult.

The stakes for the administration are immediate: federal agencies cannot implement or enforce the executive order's citizenship restrictions following the ruling. For Congress, the decision settles a question that had been actively litigated through multiple federal courts since the order's issuance, but it does not foreclose legislative action entirely, only the method and scope of that action.

The Big Picture

Chief Justice Roberts authored the majority opinion, joined by Justices Sotomayor, Kagan, Barrett, and Jackson. The majority held that the phrase "subject to the jurisdiction thereof" in the Citizenship Clause refers to the power of the United States to govern those within its territory. The Court grounded its holding in the Constitution itself, not merely statute, and rejected the Trump administration's legal theory that "direct and immediate allegiance" to the United States was required for a child to be subject to that jurisdiction.

The majority reaffirmed United States v. Wong Kim Ark and concluded that the authors of the Fourteenth Amendment sought to grant birthright citizenship to every free-born person in this land. The Court traced the English common-law principle of citizenship-by-birth-on-the-soil back through the colonists and explained that the Reconstruction Congress, seeking to undo Dred Scott, returned to that jus soli principle rather than starting from scratch. Congress passed and the states ratified the Fourteenth Amendment in 1868 with language that mirrored the common law, and the Court stated that the authors understood it to be declaratory of the law of the land already.

The majority noted that narrow, well-established exceptions to birthright citizenship, such as children of foreign diplomats, remain intact. Any statutory restriction on birthright citizenship would face the same constitutional barrier established in the ruling.

Dissenters Chart Alternative Interpretations

Justice Thomas, joined by Justice Gorsuch, dissented, interpreting the Citizenship Clause as reaching only children born or domiciled in the United States, a category that does not include children of foreign temporary visitors. Justice Thomas adopted the framework urged by the executive branch at oral argument, arguing that domicile and citizenship are so linked as to be effectively synonymous at times, and that someone cannot be subject to the jurisdiction of a place they are not domiciled.

Justice Alito dissented, arguing the Clause covers only those who owe allegiance solely to this country and that the majority wrongly equated "subject to the jurisdiction thereof" with mere physical presence. Justice Gorsuch raised procedural concerns in his dissent, arguing the facial challenge standard was not met.

Justice Jackson wrote a concurrence emphasizing that the Fourteenth Amendment rejects any racial caste system and that the Citizenship Clause applies universally precisely because such universal application was necessary to achieve the Amendment's own race-conscious remedial purposes.

The Bottom Line

Justice Kavanaugh's statutory concurrence leaves open a narrow theoretical avenue for Congress to amend the Immigration and Nationality Act, § 1401. The executive branch alone cannot redefine the scope of the Citizenship Clause, and the CRS report notes that Congress retains options in the aftermath of the decision, including pursuing a constitutional amendment. For lawmakers seeking to restrict birthright citizenship, the path forward runs through either a supermajority legislative effort with uncertain constitutional durability or an amendment process that has become significantly more difficult to envision succeeding.

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